The following is a guest post written by Zak Muscovitch, a noted Canadian attorney who has practiced domain name law for ten years. The Muscovitch Law Firm is located in Toronto, Canada.
The WIPO and NAF perform an important service to the trademark and domain name communities. Of course, as a domain name lawyer, I generally sympathize more with the domain name owner’s than with trademark claimants and am often critical of various UDRP decisions. Having represented domain name owners before the WIPO and NAF for over ten years, I have become acutely aware of deficiencies of the ICANN-mandated process. Chief amongst these is the single-panelist selection process.
Most UDRP’s are handled by a single panelist. Cases are not decided by three-person panels unless one of the parties pays an additional fee. When this happens, which is relatively infrequently, it is usually the Respondent domain name owner that requests and pays for the three-person panel.
Three-person panels are viewed as generally reaching a more balanced and fair decision. This is likely so because in three-person panel situations, each party gets to nominate panelists to serve on the panel. The parties are therefore able to include panelists that they feel have a fair-minded track record based upon previous decisions that they have made.
In the case of single-person panels however, the panelist is appointed solely by the Dispute Resolution Provider (chiefly the NAF and WIPO). Panelist selection is hugely important, as panelists have very differing views on domain name law and the UDRP. For example, some have recently adopted a radical re-interpretation of the UDRP dubbed the “Unified Concept” which purports to find bad faith registration retroactively. Others have a dramatically different view and uphold the traditional approach that requires UDRP complainants to prove bad faith registration at the outset of the disputed registration. Moreover, some panelists have a history of panel decisions that are widely criticised as being unsupportable and clearly wrong, even sometimes being severely chastised by appeals courts.
Accordingly, the personality and approach of individual panelists is of paramount importance. That is why I and other domain name lawyers, and even panelists, have been concerned about the process employed by Dispute Resolution Providers such as the NAF and WIPO, in unilaterally selecting the person to hear single-panelist cases. There is no express provision that the appointment must be random however many observers and practitioners expect and understand that the process is random, or at least believe it ought to be random.
The NAF has about 141 Panelists on its roster. After examining case-related data obtained directly from the National Arbitration Forum’s own web site, it was determined that certain panelists were appointed to hear a surprisingly large number of cases. The concentration of panel appointments was apparent after the data showed that, for example, that a particular panelist presided in approximately 966 cases, the vast majority of which were single-panel cases wherein she was appointed by the NAF and not nominated by any party to the arbitration. This represents nearly 10% of the nearly 10,000 such domain name dispute cases heard by NAF, which is a clearly disproportionate amount if cases are or ought to be randomly distributed to the 141 NAF panelists on the roster. If you would like to take a look at the short study, you can read it here.
I think that the NAF and WIPO, with the guidance of ICANN, should review the process for single-panelist selection and require random selection and specifically outline the random selection process so that there is some transparency in this important task.
Furthermore, WIPO decisions receive far greater attention and scrutiny than NAF decisions, and I believe that is because only WIPO sends out daily emails with updates on newly minted cases. Accordingly, to stimulate greater discussion and scrutiny of NAF cases, I have created a daily email service which will provide a link to all new decisions since the last email update. Sign-up is free and is available at http://www.DNattorney.com. Hopefully NAF will create their own email update service and my own will no longer be necessary.